TRIAL CHAMBER I, SECTION A, ("Trial Chamber") of the
International Tribunal for the Prosecution of Persons Responsible
for Serious Violations of International Humanitarian Law Committed
in the Territory of the Former Yugoslavia since 1991 ("Tribunal");

BEING SEISED of the Defence "Motion for Certification",
filed on 4 March 2005 ("Motion"), pursuant to Rule 73 (B) of
the Rules of Procedure and Evidence ("Rules"), seeking
certification from the Trial Chamber for interlocutory appeal
of its "Decision on Admission into Evidence of Documents
Tendered during Witness Salko Gusić’s Testimony in Court”,
issued on 24 February 2005 ("Decision");

NOTING that Rule 73 (B) of the Rules requires two criteria
to be satisfied before the Trial Chamber may certify a decision
for interlocutory appeal: (1) that the issue would significantly
affect the fair and expeditious conduct of the proceedings or
the outcome of the trial, and (2) an immediate resolution of
the issue by the Appeals Chamber may, in the opinion of the
Trial Chamber, materially advance the proceedings;

NOTING that Rule 73 (C) of the Rules provides, inter
alia, that "[r]equests for certification shall be filed
within seven days of the filing of the impugned decision",
and that accordingly the Defence should have filed the Motion
no later than 3 March 2005;

NOTING that the Motion was not filed within the prescribed
time limit, but one day later;

NOTING that the argument of the Defence in favour of
the request for an extension of time of one day to file the
Motion is that the Defence was waiting to obtain the "chain
of custody of the documents concerned by the [Motion]”,1
which the Prosecution had undertaken to provide the Defence
with by 2 March 2005; and that only on 3 March 2005 the Defence
was told that the chain of custody was not yet ready;

NOTING the "Prosecution Response to Defence Motion for
Certification", filed on 15 March 2005 ("Response"), in which
the Prosecution submits that "only five of the exhibits
for which further information was sought were tendered through
Mr. Gusic, out of a total of 28” and that therefore the “Defence
position […] that it could not file its application for certification
within the prescribed deadline because it was waiting for chain
of custody material that, for the main part, did not relate
to the present impugned decision", "does not justify
the time breach of Rule 73 (C)";2

NOTING that Rule 127 of the Rules provides, inter
alia, that "a Trial Chamber may, on good cause being shown
by motion, (i) enlarge or reduce any time prescribed by or under
these Rules; (ii) recognize as validly done any act done after
the expiration of a time so prescribed on such terms, if any,
as is thought just and whether or not that time has already
expired";

CONSIDERING that the Prosecution’s failure to provide
the Defence with the chain of custody material on the agreed
date, 2 March 2005, justifies the late filing of the Motion,
on 4 March 2005, and therefore the Trial Chamber, pursuant to
Rule 127 (A) of the Rules, recognises the Motion as validly
filed;

NOTING the arguments of the Defence in support of the
Motion, that:

the Decision affects the fair conduct of the proceedings
insofar as "the admission of documents which lack any indicia
of reliability and for which there is no reliable indication
of authenticity is capable of prejudicing Mr. Halilovic’s
right to a fair trial to the extent that the Trial Chamber
might rely upon those in the course of its judgment”;3

the Decision affects the outcome of the trial insofar as
the admission of documents which do not satisfy the requirement
of reliability and/or authenticity is capable […] to affect
the outcome of the trial insofar as the Trial Chamber might
give some weight to such evidence”;4

an immediate resolution by the Appeals Chamber may materially
advance the proceedings insofar as “it would prevent any risk
or prejudice to the Defence (should the [Motion] be granted
and should the defence be successful on appeal) and would
also ensure that any infringement upon the right of the accused
to a fair trial as might have occurred would be properly dealt
with and cured immediately so as to limit any prejudicial
consequences thereof";5

NOTING that the Motion also indicates some of the Defence’s
potential grounds of appeal "to assist [the Trial Chamber] in
determining [the] Motion”;6

NOTING that the Prosecution argues in its Response that
the Motion failed to satisfy any of the requirements set out
in Rule 73(B) of the Rules, and urges the Trial Chamber to deny
it;

CONSIDERING that by its Decision, the Trial Chamber,
inter alia, admitted into evidence documents marked for
identification MFI 102 through 107 and 109 through 129 (“exhibits”)
tendered by the Prosecution during the testimony of Salko Gusic;

CONSIDERING that the Defence has had the opportunity
to cross-examine the witness and to challenge the reliability
and/or the authenticity of the exhibits;

CONSIDERINGFURTHER, as highlighted in the "Guidelines
on the Standards Governing the Admission of Evidence", adopted
by the Trial Chamber on 16 February 2005 ("Guidelines"), the
clear distinction that exists between the admissibility of documentary
evidence and the weight that individual pieces of evidence is
given under the principle of free evaluation of evidence;

CONSIDERING that, as indicated in the Guidelines, "[f]actors
such as authenticity and proof of authorship will naturally
assume the greatest importance in the Trial Chamber’s assessment
of the weight to be attached to individual pieces of evidence",
and that for this purpose objections raised on the grounds of
authenticity and reliability are given due consideration;

CONSIDERING that it is the Trial Chamber’s belief that
the issue is not one that "would significantly affect the
fair […] conduct of the proceedings or the outcome of the trial";

CONSIDERING that the Defence failed to demonstrate the
first criterion for certification and that therefore the Trial
Chamber does not see the need to consider whether the second
criterion has been met;